Argument preview: Justices return to dispute about government’s refusal to comply with contracts to support tribes

Posted Tue, November 24th, 2015 3:57 pm by Ronald Mann

If ever a case called for pure and unfiltered judgments about fairness, it is Menominee Indian Tribe v. United States. The specific question before the Court is whether the statute of limitations of the Contract Disputes Act should have been equitably tolled to permit the tribe’s suit against the United States. The government agrees that the doctrine of equitable tolling applies, and the parties even agree (for the most part) on the legal standard: the propriety of tolling depends on both the tribe’s diligence and the extent to which extraordinary circumstances justify the tribe’s delay in filing. The only dispute is whether the reasons for the tribe’s delay justify tolling.

From a purely legal perspective on timeliness, the relevant facts are pedestrian. The case involves “Annual Funding Agreements” between the tribe and the United States for the years 1996 through 1998. The tribe first presented its claims to the government in 2005. Because the date of presentation is more than six years after the claims accrued, the claims are out of time under the Contract Disputes Act.

But what that perspective omits is the seemingly interminable dispute between the United States and the many Native American tribes entitled to payments under the Indian Self-Determination and Education Assistance Act. Those disputes arose from the federal government’s decision that it would not make support payments to the tribes notwithstanding its acknowledged execution of contracts committing it to provide those payments. Pointing to a shortage of appropriated funds, the government refused to make the full payments required under those contracts for a period of approximately fifteen years. In addition to that blunt refusal, the government also adopted a series of narrow interpretations of its obligations, which only multiplied the volume of disputes between the government and the tribes.

Aspects of the dispute have reached the Court twice previously. Both cases led to stern rebukes of the government’s actions. In 2005, in Thompson v. Cherokee Nation, the Court held that the limited appropriations did not diminish the government’s obligation for the full amount promised under the contracts. Notwithstanding that decision, the government continued to withhold payment from the affected tribes, taking the view that limiting language in the contracts and relevant appropriate statutes excused it from its obligation to pay the tribes. The Court returned to the topic in 2012 in Salazar v. Ramah Navajo Chapter, in which it repeated and extended its holding in Thompson that the government was obligated to the full extent of its contractual promises.

So it is against that backdrop that the tribe pleads for equitable tolling. Basically, the tribe has to explain the time from 1998 to 2005, which it attempts to do for much of that period by pointing to class actions that seemed to cover these claims – the litigation that led to the Court’s decision in Cherokee Nation. Because the tribe accepted the advice of the class’s counsel that the class actions covered its claims, the tribe did not present its claims separately to the government. At the time, that seemed a sensible approach; the only court to address the point at the time held that the tribes did not need to present individual claims to participate in the class, because the government’s refusal to pay turned on a general legal question as to which the individual facts were wholly irrelevant.

In 2001, though, the district court denied the motion for class certification in Cherokee and also rejected the Cherokee claim on the merits. Because the Cherokee plaintiffs did not appeal the class certification ruling, it was clear from 2001 that the tribe would have to litigate its claims on its own behalf, if at all. In the face of decisions rejecting the claims from the Ninth and Tenth Circuits, the tribe decided not to proceed to litigation. (Perhaps it is relevant that the tribe’s budgeting problems during this period were exacerbated by the government’s continuing refusal to provide the payments required under the contracts.) The tribe did not proceed to litigation until the fall of 2005, shortly after the Supreme Court’s decision in Cherokee rejected the lower court rulings and vindicated the rights of the tribes to receive payments under the contracts.

On one level at least, the government’s position is powerful. Even if we put the technicalities of the class-action litigation aside, it is undisputed that the tribe sat on its hands from 2001 to 2005 based almost entirely on the view that the case was too weak to justify the expenditure of the funds required to pursue it. That fact ordinarily would make equitable tolling all but impossible. Of course, if the tribe is correct that the class action tolled the statute of limitations throughout its pendency, then the tribe’s 2005 complaint would be timely, because the time from 2001 to 2005 is less than the limitations period under the Contract Disputes Act.

It is fair to expect that the tribe’s situation will appeal to at least some of the Justices. From the tribe’s perspective, the government promised to pay this money, but then thought better of it and interposed innumerable objections to the payments, requiring protracted litigation in multiple class and individual actions, with the government eventually losing pretty much all of the litigation. Faced with a claim that the government essentially concedes is wholly valid, some of the Justices may struggle with the idea of the government avoiding payment solely because the tribe eventually concluded it was pointless to resist. A doctrine as “equitable” as this one is easily flexible enough for the Justices to accept the tribe’s views if they find it appropriate. One thing we can be sure of, though, is that the government will face some tough questions from the Justices when they hear arguments in this case next week.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.